1. SOCIAL NETWORKS-2013
Presented by
Matthew H. Upton, Esq.
100 International Drive
Suite 340
Portsmouth, NH 03801
603-433-3317
www.dwmlaw.com
New Hampshire ∙ Maine
Copyright 2013 Drummond Woodsum. These materials may not be
reproduced without prior written permission.
2. Personal information can be easily shared and
forwarded to others.
Information can live on even after deletion.
You may not own the content.
Terms of use can create a license for the host site
to use any content you or others post.
(LinkedIn).
Cannot always be sure who you are
communicating with (could be a minor or sexual
predator).
3. Environment where lines between professional
and personal lives easily blur.
Can result in the exchange of personally
identifiable student information-FERPA
violation.
Information about co-employees or subordinates
can be a source of interpersonal issues and
disputes.
May be monitored by parents and other
concerned citizens.
4. Reply function “Like” or “Dislike”
accompanying forwarded materials can result in
unintentional membership in fringe
organizations.
Associations with others can give rise to claims
of instructional/administrative bias by parents
and other concerned citizens.
Information about subordinate employees
(venting) can amount to a breach of privacy.
5. Use of school resources (paid time or school
computers) for social purposes can drain
productivity and misuse of employer property.
Inability to properly monitor student-teacher
interactions.
May send messages inconsistent with school
policy or rules.
May result in generation of student records not
maintained in accordance with FERPA or school’s
record retention policy.
6. Even if it occurs after hours, conduct which
causes disruption to workplace can subject the
employee to discipline.
Students can use information posted to fabricate
allegations or retaliate for bad
grades/discipline.
As a teacher/administrator (and public servant)
your actions are more closely scrutinized than
others.
7. Certain employee communications may be
protected by the First Amendment.
Curran v. Cousins, 509 F.3d 336 (1st Cir. 2007).
Test:
◦ Whether the employee spoke as a citizen on a
matter of public concern. If not, no First
Amendment protection.
Discipline for purely private activity can expose
District to damages (Papa Gino’s Case).
8. 20% of employers use Social Networking sites to
learn about prospective employees. 1/3rd of
managers that use Social Networks have rejected
an applicant based on postings.
Accessing social networks to learn about
employee conduct is dangerous practice
(membership in a protected classification, whistle
blowing & other protected activity).
Access to stored electronic information without
permission can violate the Federal Stored
Communications Act, 18 U.S.C. §§ 2701-2712.
9. Generally, social networking which occurs offcampus that does not substantially disrupt the
school environment is beyond the reach of the
employer.
Likelihood of substantial disruption can be
grounds for discipline.
Manifestation determination can be difficult for
identified student.
Substantial disruption is hard to prove. The
likelihood of substantial disruption is even more
difficult.
10. Exception to the “substantial disruption” test is if
the off-campus communication interferes with
another pupil’s educational opportunities. RSA
193-F: 4, I (b).
Some courts are abandoning the Tinker substantial
disruption test such that if it does not happen on
school grounds it is out of bounds for school
discipline. Layshock v. Hemitage Sch. Dist., (3rd Cir.
June 13, 2011).
11. Examples of substantial disruption:
J.S. v. Bethlehem Sch. Dist., 807 A.2d. 847 (Pa. 2002).
Student created a website denigrated principal
and threatened another teacher with death.
Principal required medical leave for a complete
school year.
Given the impact to the principal, it was found to
substantial disrupt the school environment.
12. Examples of substantial disruption:
Donniger v. Niehoff, 537 F.3d 31 (2nd Cir. 2008).
Student created a blog calling administration
“douche bags” urged students to contact school
officials in protest to canceling a student council
event.
Court found a likelihood of creating substantial
disruption.
13.
Examples of substantial disruption:
Kowalski v. Berkeley County Schs, (4th Cir. July 27,
2011). US Supreme Court rejected the appeal.
Student created webpage S.A.S.H. (Students Against
Sluts Herpes) where a classmate Shay N. was
ridiculed suggesting she had herpes. Twelve other
classmates joined the group and participated. It was
reasonably foreseeable that the conduct would
interfere and disrupt as described in Tinker.
14. Examples of no substantial disruption:
J.S. v. Blue Mountain Sch. Dist., (3rd Cir. June 13,
2011). US Supreme Court rejected the appeal.
Layshock v. Hemitage Sch. Dist., (3rd Cir. June 13,
2011). US Supreme Court rejected the appeal.
Fake MySpace page denigrating principal with
lewd and shameful personal attacks did not create
substantial disruption even though viewed by
fellow students.
15. Examples of substantial disruption:
Mardis v. Hannibal Public Sch. Dist., (8th Cir. August
1, 2011).
Student sent text message from home that he was
going to get a gun and kill certain classmates and
make sure his high school was known for
something.
Court found that it was reasonably foreseeable
that the threats could cause substantial disruption.
More likely now then ever!
16. Examples of no substantial disruption:
Neal v. Efurd, (W.D. Ark. Feb 15, 2005).
Two students created websites critical of their
school, one website was violent and angry.
The apprehensions of a few teachers does not
constitute substantial disruption.
Critical content of websites is something capable
teachers deal with on a regular basis and does not
constitute a true threat.
17. Matthew H. Upton, Esq.
mupton@dwmlaw.com
603-433-3317
Copyright 2013 Drummond Woodsum. These materials may not
be reproduced without prior written permission.
